House of Commons - Welsh Affairs Committee

Proposed Legislative Competence Orders relating to Organ Donation and Cycle Paths - Welsh Affairs Committee Contents

Written evidence submitted by The Wales Orthodox Mission

The Wales Orthodox Mission

Eastern and Oriental Orthodox communities exist in Wales—Greek, Serbian, Ukrainian, Romanian, Indian, Coptic, Eritrean, and the faithful number several thousand. These communities are generally under the episcopal authority of their own national Churches. There are also Orthodox Christians in Wales who are Bulgarian, Ethiopian, Russian, English, Macedonian, Moldovan or Welsh. These are not organized into communities, but generally worship with the other communities. Thus there are multi-ethnic communities in some of the dioceses. The Wales Orthodox Mission (or representation) is part of the Ukrainian Diocese of Western Europe. The Diocesan Archbishop is a member of the Ukrainian Orthodox Church in Diaspora's Synod of Bishops within the Ecumenical Patriarchate (Istanbul).

In the absence of a Welsh Orthodox Diocese, Welsh institutions regularly engage with the Wales Orthodox Mission which was set-up in 1994 as a Welsh institution able to engage with tiers of government and with the public, private and voluntary sectors in Wales and in the Welsh language. The Wales Orthodox Mission reports on its work at Synods of the Ukrainian Bishops in the Diaspora.

The present submission should be understood against the background of the following concept and policy operative in the Orthodox Church:

"Among the traditional areas of the social efforts of the Orthodox Church is intercession with the government for the needs of the people, the rights and concerns of individual citizens or social groups. This intercession is a duty of the Church, realised through verbal or written interventions by appropriate church bodies with the governmental bodies of various branches and levels".

(Russian Orthodox Church's document "The Basis of the Social Concept" III:8)[35]

CONTENTS OF SUBMISSION (SUMMARY)

1. INTRODUCTION

The LCO being sought raises complex and far-reaching legal, constitutional, philosophical, ethical and theological issues, and raises profound questions in each of these areas, particularly in regard to governance and the cohesion of the State and to the dignity of the human person which is a foundation of UK society.

2. THEOLOGICAL AND PHILOSOPHICAL PRINCIPLES UNDERLYING KEY TERMS:

A. PERSONHOOD B. FREE-WILL / CONSENT

Self-determination is a hallmark and corner-stone of human dignity, and the well-being of the State and its citizens is not served well if this faculty is disregarded, especially by legislation which would allow a process to take place which would not take into account the possibility that the default position may pertain in specific cases because citizens have not applied their capacity for self-determination to the question of what use of their organs can be made by the State after their death.

To sanction a process that embraces this disregard can both erode the dignity with which the human being and the human body are viewed in the culture of the UK, and can alienate the culture of the UK from its roots. This cultural outcome could be expected to be detrimental to the culture of Britain, particularly where Presumed Consent would be enacted, ie Wales.

3. WHAT MAY BE ADDUCED FROM SILENCE?

The supposed silence of the citizen does not necessarily constitute consent, nor should the State presume that it does. The proposed system of "presumed consent" would replace what is now a donation system by a system in which only some organs had been donated by an act of free-will. Other organs would be available by default. Such a shift would not be in an ethically superior direction, as there would be no need to establish the self-determination of the citizen. As the citizen becomes viewed increasingly as a commodity, the significance of virtue, as expressed for example, in voluntary donation, becomes less significant in the view and practice of the State.

4. ECCLESIAL PRINCIPLES GOVERNING CHURCH-STATE RELATIONS; THE NATURE OF THE STATE AND THE ROLE OF THE CHURCH

The State should be mindful of its limits, as failure to do so can have dangerous outcomes. Therefore the question of whether this LCO pushes the frontiers of the State beyond an appropriate threshold cannot be avoided. It can be demonstrated that this LCO does in fact push the frontiers of the State considerably, and maybe further than they should be pushed inasmuch as it gives the State certain powers over the bodies of citizens—albeit in only one part of the State and albeit only over deceased bodies of citizens.

It displays a tendency to objectify the subject of the State (the citizen) and a tendency to a materialistic world-view. Such a world-view has intrinsic dangers which can be avoided by the State not acquiring such powers as the LCO proposes and by not developing in a materialist direction.

Both tendencies can bring about detrimental developments in social behaviour as people begin to see themselves as objects, or things. The State usually responds to such developments by being repressive. In due course, coercion replaces a healthy and salutary relationship of negotiation between the citizen and the State. The threat to democracy that emerges is obvious.

5. SPECIFIC QUESTIONS NOTED IN THE CALL FOR WRITTEN SUBMISSIONS

Whilst the use of a LCO would ostensibly be the right way to proceed with the proposal to enact a Presumed "Consent" (Opt-out) system in Wales, in this particular case it is not, in reality, appropriate as:

It would bring about a radical change within the UK of values woven into the culture and legislation of the whole of the UK and should therefore be the subject of primary legislation through all stages of an Act of Parliament.
It would bring about discrimination against the population of a certain part of the UK (Wales) by acting without regard for the self-determination of all residents of Wales (even those who might be in favour of their organs being used after their death) except those who had registered an opt-out.
It would do this without convincing proof having been given that there is a mandate, even in Wales. But neither would a mandate in Wales be adequate to deliver what is such a radical culture-shift that could not be confined to Wales and what is a governance issue every bit as much as a health-care issue.

6. SOME PRACTICAL MATTERS

Opinion is divided on the important issue of the definition of the time of death and this needs careful deliberation. This is a UK issue.

It is unacceptable to shorten the life of one in order to prolong the life of another.

The most rigorous safeguards would need to be in place to ensure that the system being advocated would not weigh against maintaining the life-support of a patient known not to have opted out of organ donation.

A statutory register could be introduced indicating whether an individual wished to opt in or out, but including a "neither of the above" option.

In this section, the default position is noted and testimony collated regarding why "Presumed Consent" is no guarantee of achieving the desired increase in numbers of organs donated. Evidence unfavourable to the Presumed Consent system is summarized from BBC Wales' programme "Dragon's Eye".

7. CONCLUSION

Organ donation is good medical practice, and is a virtue if it is truly donation. Harvesting without regard to the desire of the deceased before death does not constitute donation.

Presumed Consent does not necessarily produce the desired increase in organs becoming available.

The system would produce within the one State (the UK) conflicting practices regarding the relationship between the State and the (deceased) bodies of citizens.

Because of the existential fact of the self-determination of the human person, and the challenge presented to that dignity by the granting of an LCO that would disregard it, this LCO is therefore unacceptable from the point of view of the Eastern Orthodox Church and of many groups and individuals in society, including non-believers.

8. APPENDIX

Quotations critical of Presumed "Consent" from correspondence published in BMJ.[36]

1. INTRODUCTION

1:1 It is the view of this organisation that many profound and momentous issues are raised by the particular Legislative Competence Order in Council which is being sought.[37] These issues in turn pose pivotal questions, and it is as much the intention of this Submission to point to some of these questions as to respond with unequivocal answers to the areas noted in the Welsh Affairs Select Committee's Call for written submissions.

1:2 There is no doubt that the Order in Council being sought has many legal, constitutional, philosophical, ethical and theological dimensions and raises questions in all these areas.

1:3 Above all, it raises issues pertaining to:

governance;
the relationship between the state and the bodies of its citizens; and
acknowledgment of and the honour due to the self-determination of the individual in decision-making.

All the dimensions mentioned above (1:2) have a bearing on these three topics.

1:4 Some of the questions may be very far-reaching, not least in regard to the implications for the State as an organism. Furthermore, the constitutional issues and issues of governance which are raised would seem to extend far beyond the Welsh Assembly as a particular organ of governance.

1:5 Presumed Consent operates on the basis of a "default" mode of operating, and it is by no means proven that an opt-out (Presumed Consent) system even produces the desired result of a substantial increase in organ donation.

1:6 Self-determination is part of human dignity. Whilst it is not an absolute right (for example one may not, with impunity, determine to engage in the slaughter of other persons), it is nevertheless a basic right. The right to determine what happens to one's body after death is a legitimate right and Presumed Consent is not consent.

2. THEOLOGICAL AND PHILOSOPHICAL PRINCIPLES UNDERLYING KEY TERMS: A. PERSONHOOD B. FREE-WILL / CONSENT

2A. Personhood

2:A:1 For this LCO to be granted, it would be necessary to establish that it did not impinge on the human dignity of each person from whom organs would be transplanted—a dignity which (in a civilised society) is accorded to the human person, as in such a society, the human person is treated as a subject, not as only a body (an object).

2:A:2 The examination of personhood from a religious perspective is known as theological anthropology. Civilisations and cultures usually reflect ideas current in the religions or philosophical influences that have been operative in them, and this is true specifically regarding the understanding of the human person within various cultures too.

2:A:3 In India, for example, it was the custom for widows (Sanskrit "Sati" = "faithful wife") to be burned on the pyres of their husbands. This reflected a particular cultural and maybe religious understanding of the relationship between man and wife.

2:A:4 But this custom was at odds with the view of human personhood held amongst the British rulers of India, and they outlawed it in 1829. It is said that they were greatly encouraged to do so by Raja Ram Mohan Roy, an Indian reformer who greatly admired the western European values of democracy, liberalism and humanism.

2:A:5 In the UK, certain principles regarding the dignity of the human person are held in high regard, and these values have influenced legislation (eg through the abolition of slavery). Many of these principles originate from the cultural influences that have been prevalent here, such as the Christian understanding of the person or ideas originating in the Enlightenment.

2:A:6 The scrutiny process surrounding the proposed LCO should ensure that due regard is given to the intrinsic value of some of these principles, and the possible importance of upholding them. If any of those principles is likely to be eroded by the practice of Presumed Consent, the dignity of the person in our society will be affected.

2:A:7 Furthermore, no confusion should be made between the value of organ donation as a practice and the supposed merits of the opt-out (Presumed Consent) system being sought through this LCO.

2:A:8 It is by no means evident that the argument sometimes being made by those who favour the introduction of an opt-out (Presumed Consent) system makes this distinction clear. This seems to be the case in particular when it is maintained that large percentages of the population are "in favour". Whilst it is true that many people are in favour of organ donation, it is not at all clear that these figures also represent the number of people who advocate the Presumed Consent principle. Rigorous scrutiny must therefore be applied to ensure that no confusion between these two very distinct matters be allowed to influence either the debate or the decision that will be the outcome of the constitutional scrutiny processes.

2:A:9 Amongst the influences that have contributed to the high respect that is accorded to the human person in UK culture and legislation is Christian theological anthropology (the understanding of the human person).

2:A:10 In common with Western theologians, the Eastern Orthodox analysis of the dignity of the human person is developed around the Biblical concept that each person is made "in the image and likeness of God" (Genesis 1:26).

2:A:11 The theme is developed by St Maximus the Confessor (580-662) in a way that is very pertinent to the central issue of this scrutiny process, in that he deliberates on the self-determination of the human person.

2:A:12 "…for Maximus the fulfillment of man's purpose is immediately linked with his being not only reasonable and intelligible….but also willing, for self-determination is the core of this image of God".[38]

2:A:13 The self-determinating capacity for willing, is for Maximus a pre-eminent manifestation of the "image character of human nature" (ibid), and he enumerates five steps in the process of willing that lead to action. These are:

The wish—the starting-point.

The enquiry—directly related to the use of free-will; an effort of the rational faculty when conscious of its goal.
- Deliberation—evidence of the human capacity for virtue.
- Choice—the decisive and final act of the process of willing.
- The action—which has not only involved the rational capacity but now involves the body.

2:A:14 In the measure being proposed, the State would enact the fifth stage in this determining process (the citizen—the subject—being deceased), but with no regard for the preceding four steps. As there would be no means of establishing (other than in the case of those who had opted out or expressed a desire to donate in a will or verbally to relatives) whether or not the deceased person had reached the part of the determinating process in which they had made a conscious decision to donate, the subject would be turned by the State into an object, as the self-determination of the citizen would not be known and action would be taken regardless of this.

2:A:15 Indeed, persons whose organs might be used under the opt-out system might not have engaged in any of the steps noted by St Maximus as constituting the self-determining process which is the hallmark of human personhood.

2:A:16 From the point of view of Christian ethics and theological anthropology, both of which inform the culture and legislation of the UK, this "default position", is therefore ethically unacceptable and politically dangerous, as it is a step in the direction of treating the citizen as an object, and is indifferent to whether the citizen wished to be altruistic. It therefore disregards virtue which is based on altruistic self-determination and is most propitious to the State.

2:A:17 That it is a shift in thinking and practice is demonstrated by the fact that current medical practice in the UK is to carry out procedures (blood donation, operations, transplantation using the Opt-in system) with the consent, and taking regard of the self-determination of the subject (the citizen).

2B Free-will and Consent

2:B:1 The LCO being sought pertains to Presumed Consent regarding Organ Transplantation. Organ transplantation is a means of giving effective aid to and extending the life of many persons who in the past were doomed to death or severe disability.

2:B:2 From the point of view of Orthodox Christian ethics, the generous act of organ or tissue donation can be a most virtuous act. It can be the virtuous act of a living donor from whom an organ is transplanted when the donor is still alive "based only on the voluntary self-sacrifice for the sake of another's life. In this case, the consent to explantation (removal of an organ) becomes a manifestation of love and compassion". (Russian Orthodox Church's document "The Basis of the Social Concept" (XII.7 Problems of Bioethics).[39]

2:B:3 The decision to donate can also be the virtuous act of a living person regarding their posthumous body. This decision "can be a manifestation of love spreading also to the other side of death. Such donation or will cannot be considered a duty. Therefore, the voluntary consent of a donor in his lifetime is the condition on which explantation can be legitimate and ethically acceptable". (ibid)

2:B:4 In both cases, we observe that the Orthodox Church's position is that the free-will of the donor is a prerequisite—a sine qua non—of the virtuosity of the act of donating. The outcome of the act of donating is good for the recipient and it is virtuous on the part of the donor, in the case of the latter, given that the donating is undertaken as an act of volition, freely chosen, and not even as a duty, but as an act of love and self-giving.

2:B:5 From the point of view of Orthodox Christian Theology, this voluntary donating is based on and emulates the example of Christ's voluntary self-giving which is experienced by believers in their own lives primarily in the Eucharist where they believe that they receive the Body and Blood of Christ. In organ transplantation, "A recipient assimilates donor organs and tissues entering his personal spiritual and physical integrity". (ibid) Thus, believers see the close connection between the two acts of self-giving—that of Christ and their own desire to give of their body for the life or the healing or the alleviation of the suffering of the "other".

2:B:6 Nevertheless, one does not need to be a believer for the act of voluntary organ donation to be a virtue. But its virtuosity is still dependent on its being voluntary.

2:B:7 Not only is the voluntary consent of the donor an indispensible prerequisite of the virtuosity of the act of donating, but also this consent is, by definition, an act of will. The State itself takes regard of this principle, and the act of will—voluntary consent—can be a decisive factor—or even the decisive factor—in criminal cases.

2:B:8 Furthermore, the State accepts that a living person can will certain things to be done after their death. These are normally articulated in a Will—deliberately so-called. Opting-in to organ donation is likewise given legal sanction and recognition by the State, and is comparable to a Will as it embodies a decision freely-willed by the citizen.

2:B:9 Thus, a Will or an Opt-in signify something that is evident and clear with regard to specific matters that the citizen willed to take place after his or her departure from this life and that fell within the competence of the deceased to will. A Will and an Opt-in are an expression of the free-will of a citizen before their death.

2:B:10 If a Will had been written under constraint, or had the mental functions of the deceased been impaired or incapacitated, the validity of the Will would be in dispute, precisely because it would be questionable whether it was the product of the free-will of the deceased.

2:B:11 Thus we observe that to will—for example to will to donate—is an action undertaken by the free-will of a human being. It is not something that happens passively to the person.

2:B:12 Without the active decision to donate "The so-called presumptive consent of a potential donor to the removal of his organs and tissues, sealed in the legislation of some countries, is considered by the Church to be an inadmissible violation of human freedom". (ibid) This view is a rejection of the principle underlying Presumed Consent, namely that the silence (saying nothing) of the citizen can be regarded as an expression (saying something) about what the citizen wills. This silence requires further examination in order to ascertain whether it is legitimate to regard silence as consent to donation.

3. WHAT MAY BE ADDUCED FROM SILENCE?

3:1 Presumed Consent is intended as a replacement of the present "Opting in" arrangement. It is expected that it will produce more "donated" organs (more, regarding that particular assumption, later). In order that the free-will of the citizen in this matter should not be misinterpreted by the State, it would need to be established that the silence of the citizen can be regarded as consent in all cases in which the citizen does not opt out. Without consent, there is no such thing as donation, because, as we have noted, donation is an act of will.

3:2 Silence may signify several things in different situations. A striking case would be that of rape. The victim might have been silent during the perpetration of the crime. This silence would probably have been generated by fear. The perpetrator would be likely to attempt to argue as a defense in court that the victim's silence denoted consent. But that would of course be a falsehood, and for a jury to interpret that silence as consent could result in the delivery of an unjust and heinous verdict.

3:3 There are other poignant instances of silence not signifying consent. Such would be the silence of the victims going into the gas-chambers. This could again be the outcome of fear, of powerlessness and maybe of a broken spirit and of despair regarding their earthly plight.

3:4 There may be other logical, valid and legitimate reasons why persons remain silent in various situations.

A. They may be silent to protect themselves or others

A notable case is that of St Thomas More who, when the State began to close in on him, chose to remain resolutely silent at various points, including at his trial:

Attorney. "Sir Thomas, tho we have not one Word or Deed of yours to object against you, yet we have your Silence, which is an evident sign of the Malice of your Heart: because no dutiful Subject, being lawfully ask'd this Question, will refuse to answer".

Sir Thomas More puts on the record that his silence meant nothing of the kind: "Sir, my Silence is no sign of any Malice in my Heart, which the King him-self must Own by my Conduct upon divers Occasions; neither doth it convince any Man of the Breach of the Law: for It is a Maxim amongst the Civilians and Canonists, Qui tacet consentire videtur, he that holds his peace; seems to give his Consent."[40]

So intent, however, were the State authorities on the condemnation of St Thomas More that his silence did not save him.

Only when condemned did he proceed to explain what precisely his silence signified, and it was not assent. "More then spoke as follows: 'Since I am condemned, and God knows how, I wish to speak freely of your Statute, for the discharge of my conscience'".[41]

B. They may be undecided

For a number of reasons, people may be silent because they are unsure or undecided what to say or what to think:

They may be in the process of deciding.

They may be fluctuating in how they feel and what they think about aspects of the decision.

They may simply not want to decide. One person consulted during our research noted that she did not want to be occupied with making this decision, and that she specifically wanted her next of kin to have the responsibility when the time came.

C. They may be unapprised or not engaged

(i) Those advocating the LCO hold the view that more organs will become available through the opting out system than through the opting in system.

(ii) Who are many of the people most likely to remain silent by not undertaking the process of opting-out and thereby to be providing most organs?

(iii) Few can dispute that the sector of society least likely to engage with the whole debate and least likely to find out how to opt-out will be those whose educational achievements, social confidence and participation in civil society, render them least likely to have become apprised of the constitutional and administrative aspects of the whole debate about "Presumed Consent".

(iv) These are amongst the most marginalized, vulnerable, alienated, poor and disaffected members of society, and it is perceived amongst many that this sector of the population will be the least likely to get round to opting-out. There is a fear that this would include many members of religious and ethnic minorities.

(v) The marginalised might likewise constitute a disproportionately large part of the population not opting in under the present system, but the social consequences for them as a group in society of not opting in do not aggravate further their status as an underclass as the opting-out system might.

(vi) It is feared that under the system being proposed, they could become a disproportionately large part of society from which organs would be harvested, and the danger that the most marginalised would become the largest part of the organ bank cannot be discounted.

One member of an ethnic (Turkish) and religious (Muslim) minority in Wales expressed this perception to the present writer regarding the opt-out system: "The State waiting for the death of its citizens to access the passive organ-bank", like a vulture hovering above corpses'.

(vii) The possibility of this generating dire social consequence should not be discounted or ignored.

(viii) With this in mind, this Submission's opposition to the granting of this LCO is based on the principle that "Continuing on earth the service of Christ Who identified Himself with the destitute, the Church always comes out in defence of the voiceless and powerless". ("The Basis of the Social Concept" VI:6 Labour and its Fruits)

(ix) Very poignantly, a similar sentiment is expressed by Father Cristián Precht, head of the Vicaría de la Solidaridad[42] in Chile: "The Church enters into the broad field of the political………to affirm an historical option in favour of the weakest and most marginalized people of the society".[43]

CONCLUSIONS REGARDING WHAT MAY BE ADDUCED FROM SILENCE

(i) From the possible reasons noted above why people might remain silent by not opting out, we may adduce that presumptions should not be made about the significance of a person's silence, including the "silence" that the LCO would allow part (Wales) of the State to read into a person's failure to opt out.

(ii) For this "silence" to constitute consent, it would have to be an active decision freely willed, and the Government of Wales would need to demonstrate that fact in each case, if the "presumption" were to have logical and ethical legitimacy.

(iii) But the Government of Wales could not hope to provide such a demonstration, and therefore the terms "organ donation" and "consent" could not and should not be used regarding the system being advocated.

SUMMARY

(a) The supposed silence of the citizen does not necessarily constitute consent, nor should the State presume that it does.

(b) For a citizen not to have undertaken the process of "opting out" does not necessarily—and cannot of itself—constitute the act of free-will of organ donation.

(c) The proposed system of "presumed consent" would replace what is now a donation system by a system in which only some organs had been donated by an act of free-will. Other organs would be used by default. Such a shift would not be in an ethically superior direction.

(d) It can only be of concern to Orthodox Christians that it seems of little or no concern to those advocating the granting of the LCO that the shift involved is a shift from virtue to pragmatism.

(e) Furthermore, it is based on a false assumption. The reality is more likely that promoting the increase of virtue in society would result in the greater increase in organ donation than would be delivered by the proposed LCO. The Spanish and Brazilian experience denote that introducing "Presumed Consent" is not the crucial factor in increasing donation rates.

(f) The shift that could be expected to be attendant on the enacting of this LCO, if granted, could be expected to impact negatively on Welsh society. Further reasons for taking this view are amplified in other parts of this document.

4. ECCLESIAL PRINCIPLES GOVERNING CHURCH-STATE RELATIONS. THE NATURE OF THE STATE & THE ROLE OF THE CHURCH

4:1 Regarding the State, the Russian Orthodox Church's document, "The Basis of the Social Concept" observes as follows:

"At the same time, Christians should avoid attempts to make it absolute and failure to recognise the limits of its purely earthly, temporal and transient value….According to the teaching of the Church, power itself has no right to make itself absolute by extending its limits up to complete autonomy from God and from the order of things established by Him. This can lead to the abuse of power and even to the deification of rulers. The state, just as other human institutions, even if aimed at the good, may tend to transform into a self-sufficing institute. Numerous historical examples of such a transformation show that in this case the state loses its true purpose". The Basis of the Social Concept, III:2 Church and State.

4:2 This caution regarding any State raises the pivotal question of whether the LCO, if granted, would indicate that the UK State would, by allowing the practice of Presumed Consent within part of its territory, be:

failing "to recognise the limits of its purely earthly, temporal and transient value…";
moving in the direction of a tendency "to transform into a self-sufficing institute"; and
inclining to make "itself absolute by extending its limits up to complete autonomy".

4:3 Although the LCO would, by definition, only apply to Wales, the shift in ethos that it would bring about would be so radical that its introduction into the workings of any UK governmental institution (specifically, the Welsh Assembly) would impact on the culture of the UK and on principles of governance within the UK Specifically, it would bring about a different relationship between the State and the person (as well as just the bodies) of some of its citizens.

4:4 In order to assess the probability of the impacts ensuing from the LCO, which are raised in 4:2 above, further analysis is needed of what change, if any, would be brought about in the relationship of the state to its subjects and to the bodies of its citizens.

4:5 There is little doubt that the shift in relationship on which the implementation of the LCO would be predicated, is a shift from treating the citizen as subject to treating the citizen as object.

4:6 It is such a shift not only because of (a) its disregard for the self-determination of the subject (as noted in section 2, above), but also because (b) it would be introduced to grant part of the State greater powers over bodies than it now asserts. Indeed, civilized societies display a minimalist desire to exert powers of the bodies of their citizens. They prefer negotiation as evidenced by the role of civil society in such states and its limited role or absence in states where democracy is unevolved or absent.

4:7 It is difficult to argue that the combination of these two factors does not constitute

objectification of the subject (the citizen) of the State; and

the implementation of a materialistic world-view whereby the citizen is viewed as only body (self-determination—a rational and volitional faculty—having been disregarded).

4:8 Objectification of the citizen is a very extreme action, and if it happened in the UK, it would bring about a fundamental change in the relationship between the State and its subjects.

4:9 It would be a change in the ethos of the UK in general, for although it would be only operative in Wales, it would have been sanctioned by UK legislation, and cultural shifts cannot be limited to one geographical area.

4:10 Such a change (the combination of objectification and a shift to materialism) should not be regarded as normal or desirable. Although this may not be the intention in the case of this LCO, it is, nevertheless, the precise change that is a prerequisite of extreme coercion by the state, such as torture, for example. Cavanaugh observes that "the feeling and reality of powerlessness in torture is so extreme that the subject is no longer subject, but mere object".[44]

4:11 Turning the citizen into an object is dangerous and is not a characteristic of enlightened and civilized societies. Any step in that direction is to be avoided. Not only is it an assault on personhood, and not only does it imply that humans are only bodies, but also it gives the message (through disregard of self-determination and also even of the very purpose for which it would be undertaken in this case) that citizens are commodities available to the State.

4:12 "Christians in modernity have often bought into a devil's bargain in which the state is given control of our bodies while the church supposedly retains our souls. This arrangement would be bad enough if it stopped there. But the state cannot be expected to limit itself to the body; it will colonize the soul as well. A secular faith will not stay long confined to some temporal sphere; the secular god is a jealous god. As Luigi Sturzo pointed out, the nation-state tends to develop its own Weltanschauung, a worldview and a discipline which aspires to train us in certain virtues, to mold our thoughts and actions. It does so by taking hold of our bodies." (ibid)

4:13 Sometimes an unhealthy relationship develops between the Church and the state—unhealthy in that it is bad not only for one or the other or both, but in that the outcome is unhealthy for society. Cavanaugh argues with regard to Chile that "by imagining that it could become society's soul, the Church had already begun to forfeit its own discipline…" (ibid p41)

4:14 A materialist agenda is very detrimental to society. It is not all it seems to be: "If we understand the unity of body and soul, we must understand that what is really at stake is not body-power versus soul-power, but competing types of soul/body disciplines, some violent and some peaceful. Christians must understand that the state's control of the body is a control of the soul as well." (ibid p197)

4:15 This is a violation of personhood. That is, of course, why the programmes of the Vicaría de la Solidaridad in Chile "refused to recognize and legitimize the omnicompetence of the state over matters bodily" (ibid p272).

4:16 Objectification of the citizen and the attendant materialistic world-view which that process enunciates and implies can impact very adversely on society by seriously affecting human behaviour.

4:17 The more that people are treated as objects (things), the more they will act as things.

4:18 As a consequence, the more the State would need to exert power over and eventually even coerce the citizen, as the citizen descends from being the subject of the State to an object and a commodity available to the State.

4:19 The spiral descends into:

Increased regulation of, rather than negotiation and relationship with the citizen.

The State's gradual conviction that it has a need to control the minds of its citizens, as the materialist world-view informs the State that minds are merely an incidental by-product of the body.
This view further undermines the person, as citizens are told by the materialist stance of the State that it is their bodies that decide.
They therefore will tend to do precisely that, namely decide with their bodies with the result that violent behaviour increases.
The State in turn feels a need to respond to the internal threat to "national security", and the outcome in the form of totalitarian rule is familiar from many examples, not least in the 20th century.

4:20 It is relevant to examine whether totalitarian states in all cases actually incorporated increased powers over bodies into legislation in order to rule in a totalitarian way. Maybe not, and maybe dictators acted in spite of legislation. But in either case, what is being sought in this LCO is, without doubt, an actual increase in powers by part of the State over the bodies of some of its citizens. Admittedly it is over dead bodies at present, but a shift (as regards powers and also as regards the personhood of the citizen) would have been made, and that shift is a change in mentality. The long-term outcome is not known.

4:21 The system of "Presumed Consent" signifies not just a different practice, but a different ideology—an ideology laden with specific dangers to the citizen and therefore to democracy.

5. SPECIFIC QUESTIONS NOTED IN THE CALL FOR WRITTEN SUBMISSIONS

5:1 Is the LCO request in the spirit and scope of the devolution settlement?

5:1:1 Whilst the process of seeking and being granted LCO's is an established process taking place within the Devolution Settlement, the request for this particular LCO has dimensions that are very far-reaching and that may indeed be considered so significant in their implications, that they are different in kind from other LCOs. There would, accordingly, need to be overwhelming and indisputable reasons for the granting of this LCO to be justified. Its subject is not merely the adoption of a different health-care process in Wales, but is about a basic change in the relationship between the State and the citizen.

5:1:2 But such reasons do not seem to have been produced. The unproven assertion that it might have a good outcome regarding the numbers of organs available is inadequate. Experience in other countries has demonstrated that this is not the inevitable outcome of Presumed "Consent".

5:1:3 Above all, it has to be borne in mind that as Wales is not a state, the granting of this LCO would create a situation whereby two differing philosophical, ethical and legal positions regarding the relationship between the State and the bodies of its citizens would be operating within different geographical areas of the one State. It is arguable that this makes the LCO sought different in kind from others.

5:1:4 The question has to be asked as to whether this, in turn, would not be an undesirable and even dangerous precedent. In every State, laws and the powers they grant or prevent or curtail are based on particular concepts and particular world-views. In India, it was the custom for widows to throw themselves on the pyres of their dead husbands until this custom became outlawed by the British Government. The custom embodied a certain understanding of the relationship between a husband and his wife. This was at odds with the world-view held in Britain. Therefore the British Government outlawed it when they ruled India.

5:1:5 It is questionable whether it is for the common good of the State (the UK) that powers should be operative in one area alone of the UK (Wales) that embody a different understanding of such a basic matter as the relation between the State and the bodies of its citizens.

5:1:6 Indeed, the question of whether a radically different world-view underlies what is sought in the LCO needs to be examined and scrutinised. This examination and scrutiny need to be on all ethical, philosophical, constitutional and legal issues that pertain to the powers being sought.

5:1:7 Were it demonstrated to be the case that two world-views would be held concurrently within the same State regarding the same issue (the relationship between the State and the bodies of its citizens), it is arguable that this, likewise, would mean that the LCO sought was different in kind from others, and that the advisability of granting it was questionable.

5:1:8 Thus, if it is concluded that a different world-view is necessary in order to operate the powers being sought in the LCO, further detailed examination needs to be given to what might be the long-term implication of this for:

the State in general (the UK);
part of it (Wales);
the relationship between the two;
the cohesion of the UK; and

the trajectory for Wales of operating according to what might be found to be a radically different world-view from that held in the State as a whole and that held by many (maybe most) citizens of Wales.

5:1:9 It would be necessary, furthermore, to establish that these two world-views and two distinct principles operating within the one State and respectively underlying and governing the relationship between the State and the bodies of its citizens were not irreconcilable or/and mutually exclusive.

5:1:10 The outcome of scrutinising that concern would, in turn, need to be taken into account before the LCO were granted. If it were indeed the case that enacting this LCO entailed the one State (UK) embracing radically different and irreconcilable world views and/or principles, and permitting both to be operational simultaneously within the one State, there could be little justification for granting the LCO. It would mean that the organism of the State—the body of the State and some of its organs of governance—were divided against themselves or at very least at odds with each other.

5:2 Is the use of the LCO mechanism in accordance with the Government of Wales Act 2006?

Whilst the LCO mechanism accords with the Government of Wales Act, 2006, scrutiny needs to be applied to whether it is the appropriate mechanism in this particular case. Although the Opt-out (Presumed "Consent") process would be operative only in Wales, nevertheless, in this case, granting the LCO could affect the political culture of the UK

In fact, the LCO is predicated on such a momentous and radical departure from UK culture and could gradually impact so tangibly upon it, that MPs from all parts of the UK should be given the opportunity to debate the subject.

5:3 Does the Order relate to Field 9, Part 1 of Schedule 5 and Subject 9, Schedule 7 of the Government of Wales Act 2006?

Whilst the Order does indeed to relate to Field 9, Part 1 of Schedule 5 and Subject 9, Schedule 7 (both relate to Health and Health Services) of the Government of Wales Act 2006,[45] that does not mean that proceeding with this LCO would be appropriate as there are many reasons why that should not happen.

5:4 To what extent is there is a demand for legislation on the matter(s) in question?

A. The Memorandum provided by the Welsh Assembly Government,[46] quotes in the section entitled "Rationale" (21) from a list produced by the BMA in January 2008. It notes the following:

(i) "Studies show that the majority of people say that they would be willing to donate their organs for transplantation purposes, but only around a quarter of the population are on the NHS Organ Donation Register" [in the UK]
- (a) However, willingness to donate and supporting the principle of donation are one thing, whilst support for the system of Presumed Consent ("Opt-out") is another thing.
- (b) We do not believe that support of the former has been demonstrated to constitute support of the latter. Nor can it. They are two separate things.
- (c) To the contrary, from our informal, but extensive soundings by means of many conversations with people from a diversity of backgrounds (socially, educationally, ethnically and religiously diverse), we have observed that every person who spoke on the matter was in favour of organ donation and not one declared in favour of Presumed "Consent".
- (d) Furthermore, we observe that when certain advocates of Presumed Consent speak about this, they quote high percentages of "people in favour", but do not always make clear whether these percentages are of people in favour of donation or in favour of Presumed Consent. Accordingly, we cannot discount the possibility of dissembling and obfuscation taking place in order to push through this agenda.
- (e) There needs to be incontrovertible evidence that the "majority" said to be willing to donate their organs are also in favour of Presumed Consent, as is often being implied by those in favour of Presumed Consent.
- (f) We find no grounds to believe that this is the case and therefore discount as irrelevant the numbers who are willing to donate their organs. The self-determination of the citizen on both—not just one—of these issues needs to be established.

(ii) "Given that the majority of people say that they would be willing to donate, presuming consent rather than presuming objection is more likely to achieve the aim of respecting the wishes of the deceased person".

(a) This statement obfuscates and dissembles by disregarding a crucial element in "respecting the wishes of the deceased person".
(b) It discounts the possibility that a deceased person would wish their self-determined and self-determining decision to be known, not presumed.
(c) It is ethically totally unacceptable to presume on a "more likely" basis. Many reprehensible things could be presumed on such a basis, and many times, such matters could be presumed erroneously.
(d) This "more likely" basis hints at an erosion in the respect due to the human person and specifically to the human body, because if the human body is viewed as a potential repository for spare parts, "more likely" is, of course, good enough.
(e) It is indeed true that the present submission also uses the argument (based on our soundings) that it is "more likely" that people are not in favour of Presumed Consent than that they are. However, we say that in order to uphold a cautionary position regarding use of the bodies of deceased citizens, and we regard such a position as more congruent with the dignity of the human person and therefore more befitting a civilised and democratic society.

(f) Accordingly, there is a greater onus on those who maintain a liberal view on the likelihood of people being in favour to verify that claim beyond dispute than there is on those who advocate caution regarding such a claim.

5:5 Are there any cross-border issues relating to the LCO? (eg financial or policy issues)

5:5:1 Of course there are many such issues, not just administrative ones, but the issue of whether the culture-shift that the system would cause could be confined to Wales.

5:5:2 Furthermore, if this is a shift in the direction of materialism and if it is reprehensible in that is has the potential to erode the cohesion of the State, why should the residents of Wales be selected for the implementation of the scheme and the thinking behind it? It is, in fact, discriminatory.

5:6 Are the purpose and scope of the LCO clearly defined, including the terms and definitions used?

The purpose and scope of the LCO are defined, but the possible knock-on effects that might in reality be its most tangible and far-reaching outcomes are not. Neither has proof been provided that there is a mandate for this change.

5:7 Does the LCO have the potential to increase the regulatory burden on the private or public sector?

Yes, as the statutory authorities would need to co-ordinate a second system and link it in with the system operating in the rest of the UK.

5:8 Would the proposed LCO necessitate the formation or abolition of Welsh institutions and structures? If so, where does the legislative competence to exercise such changes lie?

A system would need to be put in place. A new Welsh institution might be needed and a co-ordinating one outside Wales.

5:9 Is the use of an LCO more appropriate than, for example, the use of framework powers in a Westminster Bill to confer competence on the Assembly?

See answer to question 2, above

5:10 Has full use been made of any existing powers to issue statutory guidance and/or secondary legislation in relation to this Matter?

5:10:1 It is questionable whether this proposal could be pursued other than by a LCO or an Act of Parliament. However, as its cultural implications are so grave and far-reaching, the latter would be more appropriate.

5:10:2 Furthermore, the powers sought are totally unnecessary. There is most robust evidence to demonstrate that it is not the introduction of Presumed "Consent" that delivers the desired increased availability of organs. (see further observations about this in Section 6:4:2—"Practical Issues", Ineffectiveness of "Presumed Consent").

5:10:3 Ensuring that an effective and proficient infrastructure is put in place has been demonstrated to deliver increased availability of organs. It brings about a gradual culture change in the direction of donation and this cultural change is not at odds with UK principles of governance and does not represent a shift in the direction of materialism and reductionism.

5:10:4 In order to do this, the Welsh Assembly needs no legislation, but it is a more expensive option. "Opt-out" is of course, cheaper.

5:11 Does the LCO have the potential to cause confusion regarding legal jurisdiction and the individuals to whom any Measure would apply to?

Inevitably, it would, and that is why it should be tackled as an Act of Parliament.

5:12 What are the implications of Article 8 and Article 9 of the European Convention on Human Rights on any such Measure? Concurrent to the work of the Welsh Affairs Select Committee, a detailed legal examination of the proposed Order will be conducted by the Constitution Committee, House of Lords

5:12:1:a In Article 8 provision is made, within the limit of certain restrictions that are "in accordance with law" and "necessary in a democratic society", for the right to respect for one's "private and family life, his home and his correspondence".

5:12:1:b Article 9, again with restrictions that are "in accordance with law" and "necessary in a democratic society", enshrines freedom of thought conscience and religion.

5:12:2 Human rights law is a specific and specialised area of law in which the authorship of this submission claims no technical expertise.

5:12:3 However, it is not beyond dispute that presuming consent might not be intrusive, and therefore careful and specialised legal scrutiny and philosophical analysis should be given to whether such "presumption"[47] (in both senses of the word) is in accordance with the spirit, as well as the letter, of Article 8.

5:12:4 From the point of view of the Eastern Orthodox Church, not only is "Presumed Consent" a contradiction in terms in spite of the fact that some of those who would be presumed to have given consent might indeed be willing for their organs to be used after death, but it is also a move in the direction of reductionism and materialism.

5:12:5 Because it is a process that is willing to disregard the self-determination of all who have not opted out other than the unknown number who are willing to be donors, and because thereby it would be relating to the citizen only as body, it leaves little room for an understanding of a human being as body-mind-soul (Trinitarian Image of God, in Christian terms).

5:12:6 Excellent examples of religions which embrace belief in God as spirit and belief in the existence of the human soul are the Abrahamic religions—Judaism, Christianity and Islam.

5:12:7 Theistic religions, share a common belief in an additional mode of reality, not just material reality. Part of this understanding is that human beings have a soul.

5:12:8 Even some non-theistic religions, although not believing in a Divine Being, assert a belief in the human soul.

5:12:9 Within Buddhism, for example, can be found the view that everything has a spiritual dimension that possesses continuity.

5:12:10 A Buddhist leader consulted in preparing this Submission made the following points:

(i) The spiritual energy of Person A's kidney, for example, would be thought to continue once is had been transplanted into the body of Person B.
- (ii) Buddhists could be concerned with the issue of whether an action creates value.
(iii) A particular action might in the view of one Buddhist create value and in the view of another the same action might not be thought to create value.
(iv) Accordingly, it would be essential to ascertain what precisely was a person's view on the donation of his/her organs whether during life or after physical death. It would be very important to ascertain the intention. The donor's view makes use, of course, of the rational faculties of the mind.

5:12:11 Another ethnic minority Muslim who was consulted made the following observations:

(i) Body and soul are closely connected and inter-related.

(ii) The positive disposition towards donation within the soul of a person from whom an organ is to be taken is very important and needs to be ascertained. It cannot be presumed. The mind is also engaged in the process.
(iii) The presence of such a positive disposition is a blessing; its absence is the absence of the blessing on the act and on the organ.
(iv) This is important not only from the point of view of the potential donor, but from the point of view of the recipient who, in turn, needs to know that the organ was truly donated and comes with the blessing of the person from whose body it was taken.

5:12:13 The Judaeo-Christian tradition likewise believes in the inter-relatedness of body, mind and soul:

(i) From a cross-denominational Christian point of view, the idea that the organ is best accompanied by the blessing of the donor resonates deeply, and has a deep affinity with many biblical texts.
(ii) Furthermore, St. Maximus the Confessor "states that body and soul are one composite nature and complete species, and that, thanks to God's will, they are brought into existence at the same time, and will remain inseparable from each other"[48] (by being united, he presumably means, at the Resurrection of the dead).
- (iii "….the human unity of body and soul is also natural, ontological". (ibid p105)
(iv) "Thus we see, that thanks to the trichotomy of mind, soul and body…..Maximus is able to express his conviction that there is a personal aspect in man's life, which goes, as it were, beyond his nature, and represents his inner unity as well as his relationship to God". (ibid p113)
(v) In the Christian Tradition therefore we observe that the whole concept of personhood is inseparable from the premise that a human being is more than body.
(vi) But the tendency of the implimentation of the LCO is in a reductionist and materialist direction, and takes little—if any - account of mind and soul.
(vii) Reductionism and materialism are themselves a world-view, and the bases of ideologies. They are not acceptable to theistic and maybe even other religions, and therefore whether reconcilable or not with the letter of Article 9 European Convention on Human Rights (which enshrines freedom of thought conscience and religion), they are certainly at odds with its spirit.
(viii) Whilst the LCO would allow people to opt-out, few can doubt that many persons of religious belief and conviction (and others too) would not be happy with the world-view to which the system leans.

5:12:14 An ethnic minority Hindu health-care professional consulted made the following points:

(i) The concept of "Dhan" is important in Hindu thought. Dhan means donation and is regarded as a very important virtuous act in Hinduism.
- (ii) Human beings have a soul and soul is present in every organ of the human body.
(iii) It is permissible to take an organ from the body of a deceased person, even without permission. However, there would be consequences for the "Karma" of the donor, and the soul of the donor could be prevented or delayed from going to its Karma in the next re-incarnation.
(iv) Each organ has a soul-dimension, and in transplantation this soul-dimension of the organ enters the recipient. The transplanted soul will be yearning for its Karma. Its Karma would have entered another person.
(v) Because of this, the recipient might (or might not) be concerned that that receiving the organ is having this effect on the Karma of the donor.

(vi) However, the recipients, because they would be aware that they were receiving another person's Karma, would realise that their appropriate response would be to cherish it.

(vii) The destiny of the donated organ is returned to it after the death of the recipient.

(viii) Whilst consent is not a pivotal issue from the Hindu point of view, a materialist and reductionist agenda, or a process which did not fully take into account that humans have souls would be most problematical.

6. SOME PRACTICAL MATTERS

6:1 Identification of the moment of death

6:1:1 Whilst committed to promoting organ donation, the Chief Rabbi of the UK, Lord Sachs raises the important issue of the definition of the time of death and notes that opinion is divided. "This division of opinion is serious because of the gravity of the issues involved: honouring life and saving life. We may not sacrifice the one to fulfil the other".[49] This is a UK issue.

6:1:2 The Document "The Basis of the Social Concept" articulates the following necessary ethical practical safeguards regarding the transplantation of organs from deceased citizens which it believes to be the most common example of transplantation: "The most common of all is the practice of taking organs from people who have just died. In these cases, any uncertainty as to the moment of death should be excluded. It is unacceptable to shorten the life of one, also by refusing him the life-supporting treatment, in order to prolong the life of another". "The Basis of the Social Concept" (XII.7 Problems of Bioethics)

6:2 Danger of discrimination

In consulting individuals, we encountered the concern that if two patients in almost identical medical conditions were near death (not necessarily even in the same hospital as there would need to be a coordinating body), the system being advocated could weigh against maintaining the life-support of the patient known not to have opted out. The most rigorous safeguards would need to be in place.

6:3 Statutory Register

We encountered the following suggestion, namely that citizens would be required to register their position on this matter (opt-in or opt-out) just as they are obliged to register births and deaths:

(i) It would be necessary to make the system flexible enough for people to be able to change their position easily.
(ii) It would need to give the citizen the option of saying "neither of the above" as some people do not want to decide during their lifetime and would like their next-of-kin to decide after they themselves had died.

6:4:1 The default position

The WAG memorandum notes that with the opt-out system, "organ donation becomes the default position. This represents a more positive view of organ donation, which is to be encouraged".

The view that this is "more positive" is only one point of view. More importantly, it should be noted that there is much evidence that having the Presumed Consent system is by no means a way of ensuring an increase in organs becoming available.

6:4:2 "Presumed Consent" is no guarantee

(i) An update is found in the record of the Welsh Assembly Government's Health, Wellbeing and Local Government Committee [HWLG(3)-06-08 (p3)] of 9 April 2008 (Committee Inquiry into Presumed Consent for Organ Donation).[50]

(ii) We are told that "The National Kidney Federation, at an At the NKF Executive Committee Meeting held on Saturday 26 January 2008 it was decided that the NKF would now campaign for the Opt Out system (Presumed Consent.) This followed the publication of the D of H Organ Donation Task Force report".

(iii) However, the Federation is also recorded as having made these observations and had articulated this position earlier (ibid "Note"):

"Organ retrieval has risen rapidly in Spain where transplantation pmp now outstrips all other countries. In 1995 a study by UK co-ordinators of the Spanish system concluded that Spain had achieved excellent organ donation rates as a direct result of their national approach, specifically:

organ procurement is considered to be a national concern;

the Spanish DOH have been proactive in effecting change by instigating an efficient infrastructure and providing realistic funding;
the high standard of training combined with a nationally accepted role results in a uniformity of service that is not subject to local variation;
at least one co-ordinator in each donor hospital allows accurate assessment of the donor pool through the comprehensive process of donor detection; and
- co-ordinators function independently from transplant centres".

(iv) These observations which focus on the situation pertaining in Spain correspond closely to much of the discussion which took place on BBC Wales' programme "Dragon's Eye" on 10 February 2010.

(v) The content of that programme is highly germane to the Select Committee's deliberations, and we would like to suggest that Members of the Committee obtain a recoding of the programme.

(vi) The significance of Spain in this context is that it has what is the highest rate of organ donation in the world, but many responses within the programme indicated that this is not attributable to the introduction by Spain of Presumed Consent (the Opt-out system) in 1979, but to their introduction of their present model in 1989 of a highly developed infrastructure, and the change in culture that has accompanied that. Key to that was the creation that year (1989) of the Spanish National Transplant Organisation. This Organisation now trains doctors from all over the world.

(vii) Below are noted some of the most relevant observations that were made in the "Dragon's Eye" Programme that support the case not to introduce Presumed "Consent" and that assert that it is not even likely to bring about increased levels of organ donation.

(viii) Those clinicians who expressed reservations about Presumed "Consent", or introducing a Presumed "Consent" system in Wales were:

(a) Dr Rafael Matesanz, Director of the Spanish Transplant Organisation.
(b) Dr Daniela Saloma (Brazilian Health Service).
(c) Professor John Faber, Department of Transplantology, King's College, London.

(1) Success in Spain was attributed to having co-ordinators, more intensive care beds and training of intensive care staff. (Professor Faber noted that the UK has 27 intensive care beds per 1,000,000 population, whereas Spain has 87 intensive care beds per 1,000,000 population).

(2) Professor Faber was of the view that one could go as far as to say that introducing Presumed "Consent" could be a negative move in that the considerable resources that would need to be allocated, if spent on matters such as better public education, including in schools, and on intensive care, could be a more effective route. It is something that is effective that needs to be done.

(3) Dr Rafael Matesanz noted that what is called the "Spanish Model" is a model of organisation. The present law "Presumed Consent" existed in Spain during the 80s, and the rate of organ donation remained low until the present model was introduced in 1989.

(4) Dr Matesanz also expressed concerns about having an Opt-out system in Wales and an Opt-in system in the rest of the UK He maintained that it would be very difficult to explain to people that in one place one system pertains and that a kilometer away a different law pertains.

He also added that he himself would not advise its introduction because obtaining the trust of the population is very important.

(5) Hospitals all over Spain contact the Organisation's Centre, but, in spite of Presumed "Consent" operating in Spain, it is only after obtaining the consent of the family that this is done.

(6) Dr Daniela Saloma noted that when they started the Presumed "Consent" system in Brazil, suddenly donations actually plummeted. They were already low but they became lower.

(7) Professor John Faber noted that Spain's refusal level was 40% in 1989 and it has taken 20 years to reach the present levels. He maintained that there is no "quick fix", and that it is not possible merely by the introduction of a law to make families say "yes". The families have to be "brought along", and it is this that Spain has succeeded in doing. He regards the donor family as the key factor.

(8) It was observed during the programme that implying that a change in the law to Presumed "Consent" would bring about a "miraculous change" was cruel, and that more needs to be done in Wales regarding intensive care beds and organ transplant co-ordinators.

(9) Mr Jonathan Morgan AM noted the philosophical shift that presumption by the State involved and that this shift is dangerous, especially without the accompanying infrastructure changes

(10) It had also been observed that were there to be a sudden increase in organ donations in Wales, that Wales does not have the necessary infrastructure or highly trained staff in place to deal with this.

7. CONCLUSION

Voluntary (ie self-determined) organ donation is altruistic and is a virtue. If seeking to achieve increased organ donation on this basis of self-determination were what was being sought, it would be highly commendable.

According to much verifiable evidence (eg from Spain, Brazil) increased organ donation is not guaranteed to be achieved by the powers sought through the LCO. Indeed, Opt-out has been shown to make little difference.

Indeed, failure of Presumed Consent can be demonstrated to have been the case in various countries.

The desired perceived outcome is more likely to be achieved by other means (infrastructure) and this does not require:

Holding a different relationship in Wales from the rest of the UK regarding the relationship between the State and the bodies of its citizens and therefore of two (contradictory) views being operative within the one State.
- Adopting a different world-view that this requires.

From the point of view of the Orthodox Church, and based on its world-view, and theological-anthropology, it is difficult to conclude that the two different world-views and the two views of the relationship between the state and the bodies of its citizens are reconcilable or that the pragmatic reasons used to support the grant of this LCO justify the introduction into the UK of a different relationship between the State and the free-will of its living citizens and the bodies of its deceased citizens from that now held and that would continue to be the basis of systems operative everywhere in the UK except in Wales.

Most important of all, the extension of life that the change being sought would be intended to deliver more effectively that the present opt-in system only makes sense if it is based the premise of the unique and inalienable dignity of the human person.

But crucial to this dignity is the self-determining capacity of the human being, and the Presumed "Consent" system acts in disregard of the need to take this into account in each case.

These two positions are incongruent, and not only from a religious point of view. They stand in contradiction of each other, and the adoption of the one (Presumed Consent) therefore involves, at worst, the dissolution and at best the erosion of the other (human dignity based on the existential fact of the self-determination of the human person). The citizen is not merely a body not needing to be consulted, nor an asset of the State or a repository available for a particular use when dead.

This LCO, whilst being ostensibly about a health-care matter, namely adopting a different process in Wales on a particular matter, is actually predicated on the constitutional and legal issue of changing the relationship between (a) the UK State and its citizens resident in Wales and (b) between the UK State the deceased bodies of those citizens.

Because of the existential fact of the existence of the self-determination of the human person, and the challenge presented to that dignity by the granting of an LCO that would disregard it, this LCO is therefore unacceptable from the point of view of the Eastern Orthodox Church and of many other people in the UK, including in Wales. The objections to it are not necessarily only or exclusively religious.

No unambiguous mandate has been proven to justify proceeding with this LCO, and this organisation appeals to members of the Welsh Affairs Select Committee to use its powers to prevent the LCO being granted.

February 2011

35 Adopted at the Sacred Bishops' Council of the Russian Orthodox Church, this document sets forth the basic provisions of her teaching on church-state relations and on a number of problems socially significant today. (http://www.mospat.ru/en/documents/social-concepts/about/) Back

36 Not published on the Committee's website. Back

37 Consent for Organ Transplantation from a Deceased Adult.
http://www.official-documents.gov.uk/document/cm79/7992/7992.pdf Back

38 'Microcosm and Mediator'. Lars Thunberg. Second Edition, 1993 page 210 Back

39 http://www.mospat.ru/en/documents/social-concepts/xii/ Back

40 From A Complete Collection of State Trials and Proceeding Upon Impeachments for High Treason, etc, London, 1719
http://law2.umkc.edu/faculty/projects/ftrials/more/moretrialreport.html Back

41 'The Trial and Execution of Sir Thomas More'. Account in a Paris Newsletter, August 4, 1535 Back

42 The Vicaría de la Solidaridad was created on 1 January 1976 by Cardinal Silva, Archbishop of Santiago. It became 'the foundation of moral and legal resistance to the military dictatorship' (Brian Loveman, 'Antipolitics in Chile' p 432). It was created precisely because the dictatorship had taken the objectification of the citizen to barbaric extremes, with torture of bodies and their disappearance being frequent occurrences. 'In the first five years of its existence, it provided services to 900,000 people'. (Cavanaugh 265) Back

43 (Cristián Precht Bañados, 'El imperativo de la solidaridat: entre el dolor y la esperanza' Santiago: Ediciones Paulinas 1986, 40, italics in original) Back

44 Torture and Eucharist 1998 page p40 Back

45 http://www.legislation.gov.uk/ukpga/2006/32/contents Back